Fifth Circuit Blog

Friday, January 25, 2013

The New Yorker Addresses Child Pornography & Civil Commitment

Some interesting reading for those of you dealing with child pornography cases, and who isn’t nowadays? The article explores the prosecution of such crimes and the civil commitment process as well as the fallacy of the DSM on sexual disorders, focusing on a 31-year-old soldier who started downloading child pornography and couldn’t make himself stop but never molested or abused a child.

A few tidbits:

- "According to the largest study of released prisoners, conducted by the Bureau of Justice, the re-arrest rate for sex offenders is lower than that for perpetrators of any violent crime except murder. But the notion that sex offenders have a unique lack of self-control has been repeated so frequently that it has come to feel like common sense."

- "Michael First, the editor of the two most recent editions of the D.S.M., [said] there is no scientific research establishing that abnormal desires are any harder to control than normal ones. ‘People choose to do bad things all the time,’ he said. ‘Psychiatry is being coopted by the criminal-justice system to solve a problem that is moral, not medical.’"

- In Minnesota, 670 inmates in a civil commitment program "work on correcting distorted thoughts about sex (at a cost of a [$120,000] per person annually), but in eighteen years only one man has been discharged from the program."

- By 2007, roughly 4500 sex offenders were civilly committed nationwide and just over 10% have been released.

- "A third of the men detained under the Adam Walsh act had been convicted of child-pornography crimes."

- "‘The idea of this one-to-one correspondence—if you are attracted to children, you will act on it—is now a widespread misconception,’ Michael Seto, a professor of psychiatry at the University of Toronto . . . ." (Yes, that’s the Seto whose study is often cited in child porn cases, usually against the defendant.)

The soldier in the article was arrested in 1998, sentenced to 53 months (a light sentence by today’s standards), sentenced to another 2 years in 2005 for violating probation, and then was civilly committed for being a "sexually dangerous person." He’s now at FMC Butner going through the Commitment and Treatment Program.

Georgia Cruelty to Children Conviction Not COV Under § 2L1.2

The panel employed the categorical approach to analyze whether a conviction under Georgia Code § 16-5-70(b) is a crime of violence under U.S.S.G. § 2L1.2. Since the statute does not require a showing of physical force, the panel vacated the sentence and remanded for resentencing.

The decision is a refreshing reminder of the categorical approach, looking only to the elements of the crime and not looking at the underlying facts or charging documents if the statute does not describe an offense that requires the use of physical force. While the Georgia statute requires proof that "the child suffers mental or physical pain," "the pain was cruel or excessive," and "the defendant caused the pain," "the language of the statute makes clear that ‘the use, attempted use, or threatened use of physical force’ is not necessary to commit the crime." The panel was unpersuaded by the Government’s argument that the Georgia statute is a disjunctive statute which permits reference to the indictment to determine whether the defendant violated the statute in a way that involved physical force. Even if the statute was disjunctive, the panel reasoned, "a person can still violate the statute by inflicting physical or mental pain without the use of physical force." Therefore, the panel did not go behind the statute of conviction.

Of course, this decision that favored the defendant included a concurrence by Judge Jones criticizing the way the Fifth Circuit has applied the modified categorical approach. Judge Jones advocates a position recently adopted by the Ninth Circuit in United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) that authorizes more liberal use of Shepard-compliant documents instead of only looking to those documents when the statute of conviction includes but is broader than a crime of violence. In her words, "we are blinkered against the reality of this defendant’s prior conviction [that he used force to squeeze and strike a toddler’s face], and he receives an unjust windfall in his sentence."

Wednesday, January 16, 2013

Texas Burglary of a Habitation with Intent to Commit Theft is COV (plain error)

The Fifth Circuit really means it this time. Seven years ago, the Fifth Circuit held that burglary of a habitation under Texas Penal Code § 30.02(a)(1) constitutes burglary of a dwelling and supports an enhancement under U.S.S.G. § 2L1.2, United States v. Garcia-Mendez, 420 F.3d 454 (5th Cir. 2005), and it did so again last week.

Defense argued that the definition of "owner"—a person who has "a greater right to possession of the property than the actor"—that is part of the Texas burglary definition made the statute broader than the generic definition of burglary. In an unpublished decision, the Fifth Circuit rejected a similar argument in an ACCA case. United States v. Joslin, No. 11-40863, 2012 WL 3488717 (5th Cir. Aug. 14, 2012) (unpublished). In Morales-Mota, the Fifth Circuit found the reasoning in Joslin persuasive and held that the COV enhancement was proper. According to the Joslin panel:

Joslin has failed to provide on appeal any evidence that Congress intended to exclude Texas’ unique definition of ownership when applying the ACCA. In Taylor v. United States, the Supreme Court found that Congress listed burglary, along with arson, in its enumerated offenses because of the crime’s "inherent potential for harm to persons." 495 U.S. at 588, 110 S.Ct. 2143. The Court found that Congress intended to prohibit crimes that often result in the possibility of violence between the offender and an occupant. Id. Merely maintaining an inferior possessory interest in a habitation does not extinguish the potential violence that may result when a person enters a habitation with intent to commit theft.

So, Texas burglary of a habitation with intent to commit theft remains a § 2L1.2 crime of violence... at least on plain error review.

Monday, January 14, 2013

Government’s interest in prosecuting still trumps defendant’s desire to not be forcibly medicated

Fifth Circuit reviewed the district court’s analysis of Sell factors and affirmed an order directing BOP to involuntarily administer psychiatric medicine to the defendant for the purpose of restoring his competency to stand trial. The defendant had threatened to kill former President George W. Bush, Texas Governor Rick Perry, and their wives. The panel found BOP satisfactorily complied with the applicable regulations, finding that involuntarily medicating the defendant would be in his best medical interests, would likely restore his competency, and was the only treatment that had any chance of success.

The panel also found the Government still had an interest in prosecution despite defense arguments that the defendant would likely continue to be institutionalized (civil commitment), has already spent 31 months in custody (arguably less than the sentence he would receive), arguably would not receive a fair trial (because he’d appear to be more sane than he was at the time of the incident), and would likely be found not guilty by reason of insanity. The panel said that civil commitment was not clear (and that even if it was, it would not diminish the Government’s interest in prosecution), that it was premature to analyze his possible sentencing range, that a defendant does not have the right to appear insane at his trial, and that it’s impossible to determine whether the defendant would even proceed with the insanity defense once restored to competency. In short, this case did not rise to the "special circumstances" contemplated by Sell that may lessen the Government's interest in prosecution.

Defendant bears the burden of proving a defense of withdrawal from a conspiracy

Smith v. United States, No. 11-8976 (U.S. Jan. 9, 2013) (Scalia, unanimous)
Since Congress did not assign the Government the burden of proving the nonexistence of withdrawal, the Court presumes that Congress wanted to preserve the common-law rule that the defendant must prove affirmative defenses. Withdrawal does not negate an element of the charged conspiracy, and the Government does not have to prove that all affirmative defenses do not exist. Affirms conspiracy convictions under jury charge that once the Government proved defendant was a member of a conspiracy, defendant has to prove withdrawal from a conspiracy by a preponderance of the evidence.

The Obama administration spent nearly $18 billion on immigration enforcement last year, significantly more than its spending on all the other major federal law enforcement agencies combined . . . .

In recent years, it found, the two main immigration enforcement agencies under the Department of Homeland Security have referred more cases to the courts for prosecution than all of the Justice Department’s law enforcement agencies combined, including the F.B.I., the Drug Enforcement Administration and the Bureau of Alcohol, Tobacco, Firearms and Explosives.

The report has a chapter on the intersection of immigration enforcement and the criminal justice system. Some interesting (but not surprising) figures—particularly given that apprehensions of illegal border crossers have plunged by 53% since 2008—from pages 93-94:

Illegal entry and illegal reentry comprise more than 90% of immigration-related prosecutions;

Between FY 2000 and FY 2010, the number of noncitizens prosecuted for illegal entry rose more than tenfold, from 3900 to 43,700;

Between FY 2000 and FY 2010, the number of noncitizens prosecuted for illegal reentry tripled from 7900 to 35,800;

Between FY 2000-03, prosecutions for immigration offenses accounted for 17-21% of the total number of federal prosecutions;

Between FY 2008-11, prosecutions for immigration offenses accounted for more than 50% of federal prosecutions; and

CBP now refers more cases to US Attorneys for criminal prosecution than does the FBI. Together, CBP and ICE refer more cases for criminal prosecution than do all DOJ law enforcement agencies combined. Partly as a result of the new trends in immigration prosecutions, the five federal judicial districts along the US-Mexico border, which are home to less than 10 percent of Americans, now account for nearly half of all federal felony prosecutions in the United States.

These cases provide a glimpse into when the Fifth Circuit will allow the government to substitute a conviction that neither the PSR nor the district court relied upon in order to justify the sentencing range. In Vargas-Soto the panel permitted the government to supplement the record after oral argument so that it could rely on a different conviction to justify the § 1326(b) enhancement without deciding whether a Texas manslaughter conviction is an aggravated felony.

In light of Vargas-Soto (issued 10/25/12), the government petitioned for a panel rehearing in Medina-Torres (first opinion issued 11/1/12). In Medina-Torres, the panel held that the record lacked documents narrowing the theft conviction to be an aggravated felony. The panel remanded so that the district court could determine whether Medina-Torres’s forgery conviction would also count as an aggravated felony. In its petition for rehearing, the government asked the panel to analyze the forgery conviction instead of remanding.

Distinguishing Medina-Torres from Vargas-Soto, the panel explains in the second opinion (issued 12/26/12) that the forgery argument

is unsuitable to be addressed for the first time on appeal for two reasons: first, Medina-Torres’ former conviction was poorly documented in the appellate record, and, second, the government was relying on a novel theory of sentence enhancement, namely, that a defendant's prior conviction should qualify as an aggravated felony with a term of imprisonment of "at least one year" even if he or she was never sentenced to a full year in prison.

So, the lesson seems to be that the alternate conviction can be sufficient if the appellate record has Shepard documents and the alternate conviction does not raise any questions of first impression. Otherwise, like in Medina-Torres, the government can still have its second bite at the apple, but it will have to be on remand before the district court first.

One side note. The Vargas-Soto opinion purportedly relied on established law to substitute another prior conviction - evading arrest by use of a motor vehicle - for the enhancement. Fifth Circuit precedent establishes that evading arrest by use of a motor vehicle is a crime of violence under 18 U.S.C. § 16(b), which makes it an aggravated felony (+8). United States v. Sanchez-Ledezma, 630 F.3d 447, 451 (5th Cir. 2011), cert. denied, 131 S. Ct. 3024 (2011). So, Vargas-Soto would have been subject to the 20-year maximum even if his manslaughter conviction was not an aggravated felony. The Vargas-Soto opinion, though, seems to conflate the two definitions of "crime of violence," stating that his evading arrest conviction "would have been sufficient to support the same 16-level enhancement." Maybe Vargas-Soto gets the 16-level enhancement for some other reason, but it would not be because of the aggravated felony of evading arrest with a motor vehicle, which is not necessarily a "crime of violence" as defined in U.S.S.G. § 2L1.2.